How death of net neutrality will kill net activism

Mishika Bajpai & Anish Vohra, Students of Law, Symbiosis Law School, Noida

ABSTRACT

One of the prominent reasons behind the success of net activism has been the free flow of internet. Social media is bombarded with comments and discussions that take place online on all sorts of policies dealing with the society. Current affairs reach out to people in the fastest ways possible; making the general public much more aware than it was ever before. But this social net neutrality might come to a halt owing to the recent policy changes by the Telecom Authorities, disintegrating the unhindered access to internet. The development of right to know and right to freedom of speech and expression to its fullest will be lost somewhere in the dreary possible policy change when the operator will charge consumers for this privilege. The paper deals with the implications of this mandate and how over-regulation might hamper online networking where people impart insights, remarks and concerns in a greatly unregulated environment. The paper addresses the acute worry that the consultation paper might destroy the very nature of unhindered internet being free and open. The paper concludes on the note that such endeavors might be useful to curb notorious anti-competitive telecom operators joining hands and dominating the market and consumers. However, it is equally important to ensure that the larger consumer interest is protected by enabling internet develop in a manner where it is democratic, uniformly accessible, and with absolutely no discrimination.

INTRODUCTION

The internet has played a profound role in the daily welfare of millions of citizens of democratic India, who have relied and made good use of this significant resource due to its free access. There have been several illustrations across the world guaranteeing the right of speech and expression and receiving of knowledge through different media. Article 19 of the International Covenant on Civil and Political Rights, has granted the right to freedom of expression through any other media of his choice ((International Covenant on Civil and Political Rights, Mar. 23, 1976, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171[hereinafter ICCPR])). Even the Universal Declaration of Human Rights under Article 19 includes the right to hold opinion without interference and to seek, receive and impart information and ideas through any media, regardless of frontiers ((Universal Declaration of Human Rights, G.A. Res. 217A (III), at 71, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR] Arts. 13, 17; European Convention For the Protection Of Human Rights and Fundamental Freedoms, Art.10.  )). The outbreak of mobile phones, media player, and laptop devices has acted as a key feature in the lives of the digital citizens. If citizens can learn to network, their voices will be heard and will be productive, helping themselves to solve their own problems via technology ((Rheingold, Howard. “Using Participatory Media and Public Voice to Encourage Civic Engagement.” (2008) Civic Life Online: Learning How Digital Media Can Engage Youth. Edited by W. Lance Bennett. The John D. and Catherine T. MacArthur Foundation Series on Digital Media and Learning. Cambridge, MA: The MIT Press, 97–118; Talks, TED, 2006, Iqbal Quadir says mobile fight poverty, available at http://www.ted.com/talks/iqbal_quadir_says_mobiles_fight_poverty. last accessed on July 15, 2015)).

THE CONCEPT OF NET NEUTRALITY

Net neutrality is the idea of keeping the web free and open ((Sascha D. Meinrath and Victor W. Pickard, “The New Network Neutrality: Criteria for Internet Freedom,” (2008) International Journal of Communication Law and Policy, 12, 225-243; Timothy Wu, “Network neutrality, Broadband Discrimination,” Journal of Telecommunications and High Technology Law (2), 141-179 (2003);)). It is the way people access the internet without any discriminatory charge. This means that every website is equally available at the same access speed for every telecom service provider and the same data cost for this access is there for each site. People can use internet for accessing practically anything on the internet, be it videos, applications, voice services, search engines or email ((Rajat Gandhi, Net neutrality: Why Internet is in danger of being shackled, The Economic Times, Apr. 8, 2015, available at http://articles.economictimes.indiatimes.com/2015-04-08/news/60943272_1_net-neutrality-telecom-operators-viber last accessed on July 15, 2015)). Net neutrality had caught the attention of many when the TRAI’s Consultation Paper on Regulatory Framework for Over-the-top (OTT) administrations came out ((Id.)). Examples of OTT are Skype, Viber, WhatsApp, Chat On, Snapchat, Instagram, Kik, Google Talk, Hike, Line, WeChat, Tango, e-commerce sites (Amazon, Flipkart etc.),Ola, Facebook messenger, Black Berry Messenger, iMessage, online video games and movies (Netflix, Pandora). Today, users can directly access these applications online from any place, at any time, using a variety of internet connected consumer devices ((Consultation Paper On Regulatory Framework for Over-the-top (OTT) services, Telecom Regulatory Authority of India (hereinafter TRAI), May 27, 2015, at 4, available at http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf last accessed on July 15, 2015)). If such a regulation is codified as a law, it could substantially reduce investment incentives, curtail innovation, and eventually harm consumers. Such a mandate would erode incentives to provide broadband Internet access and could thwart innovative applications or services from ever being developed. The recommendations on the subject are yet to be declared, however, there is a big possibility of curbing free access to the internet that the public has been enjoying over all these years. It would also, severely affect the freedom of expression to reach beyond the media to ‘a more engaged and expressive citizenry,’ and pushed governments to pay more attention to the views that citizens express. If the broadband organizations are permitted to charge content suppliers higher for quicker web administrations, it would abuse the individuals who can’t bear to pay such rates ((Id.)). This would mean disproportionate accessibility of data – a fundamental resource for a democratic world. Therefore, a pro net neutrality battle was witnessed to ensure unhindered internet in India underlines the significance of the web. If it be for the TRAI’s Consultation paper then alongside restricting our capacity to practice free expression it would also constrain the web that would ultimately counteract flexibility. Preserving an open Internet that is available to innovators, paying little heed to their size or riches, will advance a lively and focused commercial center where buyers have extreme control over the substance and administrations conveyed through their Internet connection. Policy cannot be applied without context, showing how and why it is relevant; therefore, it is equally important to study how other countries around the globe are addressing to this issue. These countries known for regulating e-freedom ((Jayadevan PK & Neha Alawadhi, Enact laws similar to those of pro-net neutrality nations like Chile, Brazil, US, say experts, The Economic Times, ET Bureau, Apr 16, 2015, available at http://articles.economictimes.indiatimes.com/2015-04-16/news/61217892_1_net-neutrality-indian-angel-network-internet-and-mobile-association last accessed on July 15, 2015))in a manner that’s most beneficial to the public have kept it free and open, curtailed by government regulation that interferes with the free market ((Sascha Meinrath & Victor Pickard, ‘Transcending Net Neutrality: Ten Steps Toward an Open Internet’, (2008 ) 12 INTERNET LAW 1, 19)). Internet being the third most complained service open access networks to the most vibrant competitive markets around the world.

THE INTERMINGLING OF NET ACTIVISM AND NET NEUTRALITY

The force of the internet is such that it significantly amplifies what is in question in considering how that balance ought to be struck. It is not denied that a slander surged in on the web may do huge harm to a man’s notoriety. However, Articles 14 and 21 are also violated since there is no intelligible differentia between the individuals who utilize the web and the individuals who by words talked or composed utilization different mediums of correspondence ((Shreya Singhal v Union of India, (2015) 5 SCC 1 at 52, 127)). To reject someone in light of the fact that he/she utilizes a specific medium of correspondence is itself an oppressive and discriminatory object and would fall foul of Article 14 regardless ((Id. at 147)). In spite of the fact that Internet interchanges may have the transient qualities of hearsay with respect to accuracy, they are conveyed through a medium more pervasive than print, and hence they have tremendous power to harm reputation. When a message enters the internet, millions of people worldwide can gain access to it ((Crookes v Newton [2011] 3 SCR 269 at §37)). Regardless of the possibility that the message is posted in an exchange gathering frequented by just a modest bunch of individuals, any of them can republish or repost or “retweet” the message by printing it or, as is more probable, by forwarding it instantly to an alternate discussion forum. Furthermore, if the message is adequately provocative, it might be republished over and over. The exceptional limit of the Internet to recreate perpetually any defamatory message loans trustworthiness to the idea that reality infrequently makes up for lost time with an untruth. The issue for slander law, then, is the manner by which to secure disrepute without stifling the capability of the Internet as a medium of open talk ((Lyrissa Barnett Lidsky, “Silencing John Doe: Defamation & Discourse in Cyberspace” (2000), 49 Duke LJ 855, at 863-64.)). One of the basic precepts of our general public is that citizens have the privilege to address issues they have with government arrangements in a peaceful way. The computerized age has overhauled this right, as sites help make and flow electronic petitions to pick up backing for changes that people feel are required all through society.

For a large number of youthful Indians today, the web is not an extravagance but rather a need. In a nation overflowing with political, social and monetary disparities, the internet is a freeing universe that levels progressive systems, makes space for development and permits unadulterated and thoroughly free articulation of discourse. It is a motivation behind why some of India’s best new companies likewise have required the web to be kept impartial ((A. Soni, How people power took on big business in the fight for net neutrality in India, The Guardian, May 25, 2015, available at http://www.theguardian.com/technology/2015/may/25/india-net-neutrality-people-power last accessed on July 15, 2015)). Here is when participative media that is available online is advantageous to situations like these. The object of such media is to empower democratic regimes where they seem to be missing; the purpose is to go beyond the mechanics of posting to work with posting an opinion—and to connect that rhetoric by playing the role of a citizen in a democracy.  Internet has seriously modernized the way people of India have interacted and exercise their freedom of speech and expression and receiving information as a part of their fundamental rights. How net neutrality advances the same, can be understood by the following example –

Consider the utilization of twitter or blogs or Facebook posts around the world over today. A straightforward idea providing individuals to express their opinions and experiences regardless of physical space, capital, or political fringes, unlimited by any confinements. Now, imagine a post that contains a comment on a public policy or how the administration should mull over undermining, maybe an upholding of philosophies contrary to current policy. Under certain proposed Legislation, the Government could exploit official forces to bring down the post and even close down the site. This strategy postures genuine dangers to our opportunity of expression. With the freedom and capacity to channel content as it achieves the web, administrations could keep the transmission of option ideologies to the public, permitting the administration to practice expansive controls over the data that we get through the web.

Keeping up net neutrality would proceed with permitting people’s access to contending perspectives from debating and settling on educated choices on a mixed bag of subjects ((Sascha D. Meinrath & V. W. Pickard, The New Network Neutrality: Criteria for Internet Freedom, (2008) Int’l J. of Commc’ns L. & Pol’y 225, 237-239)); hence, smoothening the progress of realization of cultural, civil and political rights. And this is how participatory media ((Arnstein, Sherry R. “A ladder of citizen participation.” (1969) J. of the American Institute of Planners, 35:216–24))helps in broadening the democratic horizon and enables cultural production and authentically democratic political influence. If broadband and rapid Internet contacts each local, then each of them would really have the ability to join in, and advantage from, the overall information change and add to a balanced improvement of the nation. Internet facilitates that inviolable right to freedom of speech and expression that has been granted to Indian citizens under Article 19 (1)(a) of Constitution of India. There have been a plethora of judgments declaring the right to express and the right to know ((Tata Press Ltd. v. Mahanagar Telehone Nigam Ltd. (1995) 5 SCC 139))as major facets of our constitutional foundations. This important facet of media breaks down traditional barriers be it geographical or jurisdictional constraints ((Maneka Gandhi v. Union of India, AIR 1978 SC 597)), and facilitates free speech and exchange of ideas like no medium has before ((M. Divan, Facets of Media Law, (1st Edition, Eastern Book Company, 2010) 22)). The communication of ideas may be through any medium, electronic ((Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal, AIR 1995 SC 1236)), audiovisual ((Tata Press, supra note 19 at 156)), newspaper ((Sakal Papers v. Union of India, AIR 1962 SC 305; Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106))or magazine ((S. Raghgarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.)). In this age of information and accountability, where the live telecast of legislative proceedings has become mandatory ((Gazette Notification No. 16(1) Cable /2005 E-III dated 25.02.2005 issued by Prasar Bharati)), public interest also seeks discussions stemming from the members of a democratic society who should be sufficiently informed as they may influence intelligently the decisions which may affect themselves ((Attorney General v. Times Newspaper Ltd, (1973) 3 All ER 54)). It was rightly held that Right of Information is facet of ‘speech and expression’ as contained in Article 19(1)(a) of Constitution of India ((Peoples Union for Civil Liberties v. Union of India, AIR 2004 SC 1442 at 1453; S.P. Gupta vs. Union of India, 1981 Supp SCC 87)).

Government, in the activity of its Executive power by method for a policy decision, makes an entity or divests its capacities, which may have an orientation upon the Fundamental Rights, for a private body or exchange of open substance to a private body, in such an inevitability, the capacities prior released by the Government can’t be termed as absolutely a private capacity. Such an understanding would be needed to ensure that this privilege is flexible for expression, on the web or elsewhere, so as to guarantee satisfaction in human rights ((S.P. Gupta, supra note 28 at 273)). Once advanced opportunity is traded off, the predetermination of every site, regardless of its size or quality, will be dictated by telecom administrators giving access to Internet. Media new businesses or little autonomous media endeavors will obviously be prompted for setbacks in which telecom organizations are engaged to make quick and moderate paths or segregate content for business reasons. In the event that they lose their opportunity to make and offer substance, these little media players are subject to shutdown as a result of their failure to shoulder the extra weight of particular treatment. Net activism will also take a back seat if the public is not aware of the current events and comment on recent policies online for the others to read, thereby eliminating the thread of comments and opinions.  A few TV news stations bit the dust simply because they couldn’t bear the cost of the carriage expense charged by link and DTH administrators. The proposition of getting rid of unhindered internet, as mooted by the TRAI paper, raises the likelihood of media sites excessively falling prey, making it impossible to the carriage charge model. If the TRAI proposition were to be acknowledged, India will have all the more control in the same way as China, which has infamously controlled web access, than with the US, which as of late received a “hard law” to secure unhindered internet. Accommodating this sudden push some telecom and Internet organizations have made preparations for “zero rating arrangements” (or differential rating for distinctive locales, applications or administrations). The requirement for unhindered internet oversight to guarantee the diversity of content and check any endeavor to throttle streets to get to data has arisen. The big news portals that could earlier bear the cost of the carriage charge requested by telecom organizations will now be compelled to move their spending from news social occasion to dispersion expenses, influencing the nature of news-casting. The defenselessness of set up media houses is apparent from the experience of the internet.org plat-structure advanced by Facebook. They are under pressure to remain focused stage keeping in mind that they turn out to be less open on the web. The thought of making the Internet less open will likewise have security suggestions as well. The security of writers may be traded off as telecom organizations will do “deep packet inspection” that will include profound bundle investigation as a component of their business arrangement to guarantee rapid access to certain site and back off access to others.

Readers and viewers will be denied of decision in the post-net neutrality time as they will have entry just to those media locales that are clients of the telecom administrator. Meanwhile, sites of little distributers and territorial press media players are prone to vanish from the radar of Internet clients. As the Internet loses its current dynamism and openness, it will get to be harder for new contestants to be seen regardless of the value of their advancements. The disintegration of unhindered internet would discourage media startups and as well as settled news associations.

CONCLUSION

Thus, there is tremendous chance to make great utilization of innovation on the guided way of decency standards to accomplish innovation and free discourse of speech and expression. The authors feel that if the issue of unhindered internet is given equivalent significance alongside issues like rivalry, openness, security and accommodation, it would not be hard to understand the objective set by the law makers. Notwithstanding the way that India has the sizeable resources to accomplish the authorization of this privilege, the deficiency of base is an obstacle to the same. Since this advancement has surfaced during an era when telecom organizations are going into system sharing understandings and tie-ups for offering free access to specific sites and versatile applications, these exercises have raised significantly bigger attentiveness toward the unreasonable rivalry guard dog. The Competition Commission of India needs to make stringent strides in deciding any conceivable monopolistic or tricky dealings. It ought to keep a nearby watch on whether telecom and web access suppliers are taking part in hostile to aggressive business rehearses by giving particular treatment to choose versatile applications and sites. Gapping the advanced partitions will be conceivable with fruitful and effective arrangements by the Government considering the perils, externality and opportunity costs. The thought is to acquire equality amongst administration suppliers, in order to urge the new businesses to contend with the greater ones. If legislature is unable to manage the cost of giving information for free, then taking into consideration zero rating for those locales will again bring about differential treatment. When the net impartial methodology is received, even the free Wi-Fi model augured, would work well if the customers are given some piece of their bundle without charge, for reasonable use. As a result of a suspicious apprehension of meddling with the point of preference that the Internet has now brought the foremost focal points by its continuing augmentation, it is fairly favorable that the law ought to encourage and support such advances, not attempt to constrain or frustrate them by clashing and lacking. Conversely, neither has the enactment sufficiently developed to know the ideal measure of intercession that is required in order to make this human right flourish nor are the State Governments in concordance with their web arranges. It will likewise be intensely significant learning from the experiences and mix-ups of different nations while confining free web to all. The cost of Internet combination in India is broadly high. An effective computerized consideration philosophy gives an approach to full enthusiasm for a propelled society. Picking up a superior comprehension of how this new market method functions will be fundamental in the propelling years considering the anticompetitive lead by telecom administrators. Additionally, the issue of unhindered web in the whole deal can undermine reputation of open interest based Internet telephony and relative distinctive applications as all the moderate Internet suppliers may start requesting business and without business understandings they may decline to convey the substance and give wanted nature of administration. Unhindered internet would help ensure the Internet’s free and open character in India and that a deviation from the same will abuse citizens’ fundamental right to speech and expression as well as the fundamental right to know.

Media: To regulate or not to regulate?

Media: To regulate or not to regulate?

Author: Arpita Seth

The post hyperbolic coverage of 26/11 in 2008 prompted the Government to scrutinize the inner workings of media organizations. Victim’s families were showcased, in the way it was done during the December 1999 hijacking of Indian Airlines Flight 814. Media reporting during 26/11 helped aid the cause of terrorists in laying a vicious siege in the city ((See also Live TV Coverage Put National Security in Jeopardy)). Surprisingly, in 2006-07 it was lauded for its effort in being able to speed up famous criminal trial processes in Delhi. ((Trial by Media-Looking Beyond the Pale of Legality))

Rang De Basanti, like most of Aamir Khan’s movies made a huge impact on the citizenry in reliving the extremist way of fighting for justice. The meditative moment in the movie was the protagonist and his friends marching towards India Gate in a candle light vigil to protest against the politically covered death portrayed in the movie. It is through these candlelight vigils that when the Court granted acquittal in notorious criminal trials, media intervened to shed light on the obvious political clout.

Image courtesy: European Student Think Tank

In the Jessica Lal Murder Case, Manu Sharma’s acquittal was overturned in Dec 2006 by the Delhi Court to life imprisonment, later upheld by the Supreme Court in 2010. ((State v. Siddarth Vashisth & Manu Sharma 2001 CriLJ 2404, Bina K. Ramani v. State on 5th Feb 2010 (Delhi HC), Sidharth Vashisht @ Manu Sharma vs The State (N.C.T. Of Delhi) on 12 May 2008 (SC), Sidhartha Vashisht @ Manu Sharma vs State (NCT Of Delhi)on 19 April 2010 (SC). )) In fact, the Trial Court had acquitted all the nine accused due to lack of evidence in Feb 2006. It was when the media’s interest spurred that the judiciary took suo moto cognizance of the case and reopened it. So was the case in the ghastly murder of DU law student Priyadarshini Mattoo. She was raped, striked 14 times on the face and strangulated with a lamp wire leading to her death, by her jilted lover Santosh Singh. In Oct 2006, death penalty was awarded to Santosh Singh by the High Court, as opposed to Trial Court’s acquittal in 1999. The SC later in 2010 commuted it to life imprisonment. ((Santosh Kumar Singh vs State Th. Cbi on 6 October, 2010 (SC), State (Through CBI) vs Santosh Kumar Singh on 17 October, 2006 2007 CriLJ 964.))The Nitish Katara murder case achieved its share of attention from the media because of the accused belonging to the family of influential politician D.P Yadav. The accused- Vikas Yadav and Vishal Yadav were sentenced to life imprisonment in 2008 for the murder of Nitish Katara. The victim’s mother relentlessly has tried appealing to the Court to not encourage the criminal activities of Vikas and Vishal Yadav while out on Bail. The Delhi High Court has taken due note of the same. ((State vs Vikas Yadav & Anr on 7 August, 2009 (Delhi HC), Indian Council Of Legal Aid And … vs State (Govt. Of Nct Of Delhi) … on 27 November, 2006 (Delhi HC), Vikas Yadav vs State Of U.P. And Another on 26 April, 2011 (Delhi HC), Vikas Yadav vs State Of U.P & Anr on 23 October, 2009 (Delhi HC).))The Neeraj Grover murder case found media attention due to the involvement of a small time Kannada actress Marie Susieraj. The warped Nithari killings in Noida by Mohninder Pandher and his manservant Surender Koli were illuminated by media support, prompting the CBI to relook into the shoddy investigation. ((Surendra Koli vs State Of U.P. Ors. on 15 February, 2011 (SC), Nahar Singh Yadav & Anr. vs Union Of India & Ors. on 19 November, 2010 (SC), Mohinder Singh Pandher S/O Late … vs C.B.I. S.P.E., State Of U.P. And on 14 December, 2007 (Allahabad HC), Nithari vs Stateon 5 October, 2011 (Gujarat HC).))The qualifications of a CVC chief in the PJ Thomas case and media’s public debates on this issue gave the Courts the green signal is doing ‘justice’ in the particular case. The Ruchika-Girhotra Molestation Case started afresh and the accused S.P.S Rathore was booked under S354. In 2010 the SC released him on bail shocking the nation in the travesty of justice. ((Mamta Sharma vs Central Bureau Of Investigation on 19 February, 2001 (Punjab-Haryana HC), S.P.S. Rathore vs Central Bureau Of Investigation on 1 September, 2010 (Punjab-Haryana HC).))

Unlike the above, where media aided in the quest for truth and justice, in the unfathomable Arushi-Hemraj Murder Case, media created a sort of havoc by publishing confessions, ranting about the CBI’s involvement in covering up the crime and vilifying the Talwar household as bizarre. The co-accused Mrs Nupur Talwar also sought to take action against certain media houses for defaming their name in public without concrete evidence. Nevertheless, media curiosity can be attributed to the spate of mysterious killings post the crime involving the murder of Talwar’s counsel’s mother and the recent murky road accident of the first investigating officer in the case. ((Rajesh Talwar vs C.B.I & Ors.on 2 March, 2012 (SC); Nupur Talwar vs Cbi & Anr on 7 June, 2012 (SC); Dr Mrs Nupur Talwar vs Cbi Delhi And Anr on 6 January, 2012 (SC); Recently with respect to developments see- Talwars Used Internet On Murder Night))In July 2008, the Supreme Court specifically noted that media should not try to hamper gathered evidence and pass opinion before the verdict was out. So was the case with the 2G Scam and the number of scams that have been unearthed. In fact during the Age Row case of former Army Chief General V.K Singh, several news channels had legal luminaries along with defense personnel arguing the nitty-gritty’s of the technical case.

With complaints of false reports of ongoing legal cases being published in the print, electronic and social media alike, journalists and media house owners had to face the ire of the Apex Court. A number of Senior Advocates approached the Court and cited instances fit to make a string case of defamation. The issue of administration of justice being compromised in the alleged ‘yellow journalism’ perpetrated by media was compounded with the sensationalism in ongoing criminal/corruption cases. In fact the Supreme Court had earlier come out with the stipulation that only law graduates who have undergone the rigors of the legal course are fit to become legal correspondents. From leading lawyers such as Harish Salve, Indira Jaisingh and Soli Sorabjee bellyaching the media’s cat-and-mouse TRP/advertisement based content, it all strengthened the case for coming out rather astonishingly with media guidelines. ((V. Venkatesan, Fetters on the Media?))To understand the arguments, it is pertinent to analyze the 11th September 2012 Judgment passed by the Apex Court.

Sahara India Real Estate Corp. Ltd. & Ors. v. Securities & Exchange Board of India & anr. In this dispute, Sahara brought up the issue of a privately confidential dealing between itself and SEBI being leaked onto the public via a popular business channel-CNBC TV. The case was sub-judice and the leakage of information was detrimental to Sahara’s economical interest. Sr Advocate Fali Nariman, arguing on behalf of Sahara made the plea of appropriate guidelines being issued in the publicity of sub-judice cases as well as in disclosure of public documents forming part of the Court proceedings. It also urged the court to adjudicate upon the publicity of a case in print and electronic media on not giving opinions when the verdict had not yet been passed. CJI Kapadia was presiding over the Bench and with a news report in the Times of India on his conflict of interest in the Vodafone Tax Case, he too shared Sahara’s burden and felt aggrieved. ((Id))He in fact had invited applications from the public as well as lawyers to support instances of media stumbling administration of justice. He claimed to have received around or more than 50 such applications mostly from Senior Advocates. ((Id))In the present case, the Court’s love affair with the media turned awry as can be seen with the following principles being laid down-

  • Prior Restraint has per se not been deemed unconstitutional. Preventive Injunction against the press must be based on reasonable grounds so that it does not impede administration of justice. ((Brij Bhushan v. State of Delhi AIR 1950 SC 129; Virendra v. State of Punjab AIR 1957 SC 896; K.A. Abbas v. Union of India AIR 1971 SC 481; Binod Rao v. Minocher Rustom Masani 78 Bom LR 125; Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1; Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883; Globe Newspaper Co. v. Superior Court, 457 US 596; Mohd. Shahabuddin v. State of Bihar (2010) 4 SCC 653.))
  • The concept of “Open Justice” is the cornerstone of the judicial system, which can be restricted in its inherent jurisdiction if it necessitates administration of justice. ((Independent Publishing Co. Ltd. v. AG of Trinidad and Tobago [2005 (1) AC 190]; Vincent v. Solicitor General [(2012) NZCA 188 dated 11.5.2012]))
  • Prohibitory publication which is the result of meeting the administration of justice is never violative of Art19(1)(a).
  • S3 of the Contempt of Courts Act prohibits making public anything related to court proceedings when the matter is sub-judice before the court of law. ((Delhi Judicial Service Association v. State of Gujarat (1991) 4 SCC 406; Supreme Court Bar Association v. Union of India (1998) 4 SCC 409; Ram Autar Shukla v. Arvind Shukla 1995 Supp (2) SCC 130))This is to protect the due process of law from being perverted. S4 gives the right to publish a report if it is fair and accurate, but is subject to S7, which talks about media being precluded to witness an in-camera trial. Contempt of Court is an offence sui generis.
  • Presumption of Innocence is a Human Right. The Court under its inherent powers in Article 129 or Article 215 order postponement of publication if the appellant can establish substantial risk of prejudice of the pending trial. The burden of proof will be on the appellant alleging the offending information. ((Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra(2005) 5 SCC 294))
  • There is no general rule to formulate postponement of publication and depends on the extent of prejudice caused in each individual case. ((Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal [(1995) 2 SCC 161 ))
  • Postponement gives twin benefits of fairness in a trial and the prevention of possible contempt by the media.
  • Though, Article 19(2) does not specifically include public interest as being one of the 7 causes for restricting free speech, all the 7 clauses have the same underlying factor that of “societal interest” which is another name for “public interest”.
  • Order of postponement will be valid only if the balancing test favors non-publication for a limited period.
  • Postponement will be valid only if there is a real and substantial risk to the fairness of a trial and in meeting the ends of justice when Art19(2), Art129/215 and Art 142(2) are read in conjunction with each other. It is to be treated as a neutralizing device evolved by the Courts so as to effectuate a balance of interest between free expression and rights of the accused.
  • The underlying factor behind postponement is prevention of possible contempt.

This judgment invited mixed reviews both from the legal fraternity and media persons. In an interview given to Frontline, former SC judge Justice J.S Verma refuted the idea of the judiciary laying down guidelines for media on the premise that it will clearly violate freedom of the press. Gagging the press is not a solution to produce neutrality in news content. He also debunked the analogy between the Guidelines laid down in the Vishakha case with guidelines being laid down for the media. He said that a free press was the litmus test for a vibrant democracy and any form of outside intervention would debilitate the institution of democracy itself. ((V. Venkatesan, I am Against Any Restriction))

In the above case, the Court as such did not explicitly feel the urge to control the media but wanted to regulate whatever content came in conflict with the administration of justice. When Fali Nariman got to know that Kapadia’s Supreme Court was intent on framing guidelines for the media, he explicitly stated that he did not as such urge for regulation but emphasized that each case be checked on an individual basis instead of laying down a general stand. ((V. Venkatesan, Fetters on the Media?))When the Supreme Court formed a 5 judge Constitutional Bench to procure a balance between Free Speech and Expression along with Rights of the Accused/undertrial, Indira Jaisingh in a surprising twist of logic in speaking on behalf of the Central Government tabled the idea that Free Speech is only for the citizens and media being an institution was misplacing it. She furthered her argument on the rationale that media has the right to inform and not misinform and misguide the public. ((Id))Rajeev Dhavan, speaking on behalf of the Editor’s Guild of India point blankly stated that handcuffing the media with guidelines tantamount to legislating or rather giving vent to judicial activism gone afar. ((Sit With Us, Discuss Guidelines: Editor’s Guild to SC))As was published in Frontline, the Court merely insisted on laying down a lakshman-rekha for the media to follow so that prejudices do not chaperone a judgment rather than gagging the press. ((Supra note 19))If we talk about gagging the press, Congress MP Meenakshi Natarajan’s Print and Electronic Media Standards and Regulation Bill 2012 was shelved on account of keeping a totalitarian control over the media. The Bill went so much ahead as to even obviate the giving of information under the Right to Information Act when free speech comes in conflict with national security. It was punitively vindictive and gave an eerie haunting, remindful of the 1975 Emergency orchestrated by Mrs. G. ((Maneesh Chhibber, Ban & Seize: Congress MP Bill Out to Gag Media))

Known for his mythologically historical obiter dictas ((See also Kunal Majumdar India’s Hyperactive Judiciary)) Press Council of India Chief Justice Katju, has relentlessly defended freedom of the press on all accounts but has put forth the need for regulation. Press Council of India under the Press Council Act 1978, has been vested with nickel-and-dime like powers of improving the standards in Journalism. ((J. Venkatesan, Press Council for Court Guidelines; The Hindu opposes Idea))The Code of Ethics and Broadcasting Standards chartered out by the News Broadcasting Association regulates broadcast media. The News Broadcasting Standards Authority (NSBA) is a self-regulatory authority headed by Justice J.S Verma to keep tabs on news ethics in broadcast media. With self-formulated regulatory bodies keeping a check the need for the judiciary to frame guidelines seems equivalent to control rather than the ‘euphemistic’ term of regulation. ((V. Venkatesan, I am Against Any Restriction)) In UK, there is the Reporting Restrictions in Criminal Courts Body and FAIR in USA to see that press remains ethical in its approach in providing information. The need of the hour is not for the government or the judiciary to blast away at media organizations but to rather let them formulate an independent body of their own with their own system of checks and balances. ((Sagnik Dutta, For A Credible Model))

Regulation of any sort or postponement of publication will lead to fetters on the media undoubtedly. Publication is valid if the report is fair and accurate if one goes by the 2006 amendment in the Contempt of Courts Act 1970. ((Markandey Katju, Contempt of Court; Need for a Second Look))To think that its aim is to increase the credibility is a simplistic estimation. Agreeing that the media cannot sensationalize news, but punishment can only be pronounced once the act has been committed. This is the general norm on which law courts function. We don’t necessarily convict a person to a period of incarceration because allegedly ‘reasonable-minded’ persons think that particular person has almost possible likelihood of creating havoc. Even for detainment glaring evidence has to be present. Media similarly, cannot be made to put their hands behind their backs because there is a sudden raid of Arnab Goswami brand of journalism. As Sr Adv Nariman pointed out in the aforementioned case, individually cases need to be handled. There is a legal system, if one feels that defamation, the notorious blasphemy or the archaic sedition law has been violated then they must approach the court of law and prove beyond reasonable doubt how tempestuously they have been victimized by such speech and expression. Justice P Sathasivam and Justice Swatanter have rightly stated that presumption of innocence is a fundamental right, which cannot be hampered by a trial imposed by the media. ((SC Reverses Acquittal by the HC in Mumbai Child Sex Abuse Case))

The irony of the whole media-bashing episode is that despite media houses indulging in perverse journalism (a darker shade of yellow), private complaints are not being registered and journalists doing so are not even being rebuked due to their influence. If lawyers are so aggrieved then they should make use of the art they are well versed in rather than provoking pseudo-legislation. In fact websites such as Mediaah!, Desi Media Bitch were forced to be taken down after publications such as the Times of India threatened the owner with dire consequences. Such shark-eat-shark instances in the media industry are commonplace. To botch competition, the industry gets its hands dirty in the war for procuring more viewership and readership producing a domino effect. But why doesn’t the Court take suo moto cognizance of such cases? Barkha Dutta despite being exposed in the Nira Radia Tapes and rebuked for dangerous (yes that’s the word) journalism during 26/11 as well as Kargil was not pulled up by NDTV. When Hillary Clinton and Oprah Winfrey visited India in 2012, the questions Barkha Dutt put forth, demystified her in appeasing the political and in the saddle. Arnab Goswami, clearly a liberal fundamentalist with his angry-young-man rants still rules the 9pm slot on Times Now creating a new brand of if-you-don’t-agree-with-me-you-are-doing-injustice-to-the-public. IndiaTV shouldn’t even wander near the television industry, being solely responsible for uplifting yellow journalism in India. Aaj Tak, belonging to the ‘breaking news’ category of channels should ideally go off air if it does not stop remonstrating the public with unscrupulous information. Times of India should focus more on political-economic issues of national concern than when the latest movie star is due to tie the knot, being one of the mostly read English daily. The trends are flagged off by the bigger fish, which creates a dominant trend in the media industry. The point of the matter is, individual complaints can only be filed if the quality and credibility of media has to be improved. Generalizing norms even punishes those disseminating vital and credible information. ((Shashi Kumar, Just Let The Press Be))

Anna Hazare’s movement became a flash in the pan success due to its incessant rambling against politicians and the government machinery. It was fired up with the increase in the exposes caused due to innumerable scams unearthed in 2011. To condemn all politicians as bad because a section is corrupt and criminal should not shun the institution of the government. The Supreme Court was not aggrieved with a recent policy framed by the government or was not aggrieved when politicians were involved in loot, murder, caste-based politics and rioting. If Hon’ble CJI Kapadia received more than 50 applications for media guidelines, he would have received more than a 1000 guidelines to regulate politicians in the country. With majority MPs sitting in Parliament having a criminal case registered against them and the increase in unruly behavior of parliamentarians has not been able to manage a set of guidelines. Then why shackle the Media?

Leading journalist Rajdeep Sardesai has said- agreed we need to clean up our own house but regulation of any form is a barefaced restriction on the freedom of the press. ((Sagnik Dutta For A Credible Model))To conclude, Asian School of Journalism Chairman Shashi Kumar brought to light a poignant statement made by the first prime minister of India, Jawaharlal Nehru-“I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press ((Shashi Kumar Just Let The Press Be)).” His daughter tried her best to strangulate the press in 1975; her daughter-in-law is trying to re-live the same in 2012.